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EEOC Commissioner Feldblum Offers Insights on Obesity as a Disability

Featuring uniquely comprehensive and objective coverage of judicial, legislative, and regulatory developments in the area of equal employment...

Chai Feldblum (interviewed by Patrick Dorrian)

Chai Feldblum was nominated to serve as a commissioner of the EEOC by President Barack Obama and confirmed by the Senate in December 2012 for a term ending July 1, 2013. In May 2013, the president nominated her to serve a new five-year term.

Before joining the EEOC, Feldblum was a professor of law at the Georgetown University Law Center. Prior to that, she served as legislative counsel at the American Civil Liberties Union, where she played a leading role in helping to draft and negotiate the original Americans with Disabilities Act.

She received her J.D. from Harvard Law School and her B.A. degree from Barnard College, and she clerked for both Judge Frank Coffin of the U.S. Court of Appeals for the First Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. Commissioner Feldblum is the first openly lesbian EEOC commissioner.

BNA:

The subject of obesity in America has featured prominently in the news lately, including the American Medical Association's June announcement that it now recognizes obesity to be a disease rather than a mere medical condition. What is the Equal Employment Opportunity Commission's position with regard to the coverage of obesity under the Americans with Disabilities Act?

Feldblum:

The commission's regulations state that, while body weight within a “normal” range is not generally considered an impairment, body weight that falls outside a normal range, whether above or below, or body weight that is the result of a physiological disorder (such as a thyroid condition) can be an impairment under the law (29 C.F.R. Pt. 1630, App. § 1630.2(h)).

The question then is whether the impairment, be it abnormal weight or a condition causing abnormal weight, substantially limits a major life activity or a major bodily function. That assessment is made on an individualized basis and the outcome will depend on the facts and circumstances of each case. This position, I think, reflects a fairly long-standing consensus. Courts recognized that morbid or severe obesity could constitute a disability under the Rehabilitation Act of 1973, the predecessor to the ADA. And while morbid obesity, like many other conditions, was often found not limiting enough to qualify as a disability under the ADA as originally enacted, courts are beginning to reassess that view in light of the ADA Amendments Act. For example, in two recent cases--EEOC v. Resources for Human Development, 827 F. Supp. 2d 688, 25 AD Cases 964, 2011 BL 319140 (E.D. La. 2011) (37 EDR 872, 12/21/11), and Lowe v. American Eurocopter LLC,24 AD Cases 40, 2010 BL 298575 (N.D. Miss. 2010)--federal district court judges have denied motions for summary judgment on the question of whether morbid obesity constitutes a disability.

BNA:

Has EEOC issued any formal guidance that addresses obesity?

Feldblum:

EEOC has not issued any formal guidance on this issue besides the portion of our Interpretative Guidance mentioned above and Section 902.2(c)(5) of our Compliance Manual, which states that while being overweight is not an impairment by itself, “severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment.”

BNA:

Which major life activities does obesity typically affect?

Feldblum:

Obesity can impact a range of major life activities and major bodily functions. The question is whether obesity substantially limits those major life activities or major bodily functions.

BNA:

What are the some of the work accommodations that might help an obese worker perform his or her job?

Feldblum:

The accommodations that might be required will depend on the limitations that the obesity imposes on the worker. As you might imagine, those accommodations could vary widely. I would add that my understanding is that discrimination against persons who are obese frequently stems from perceived as opposed to actual limitations. So what obese employees will often want is simply the chance to show they can perform a job.

BNA:

Does the EEOC receive many reports of obesity-based harassment?

Feldblum:

I'm not aware of any specific numbers on that.

BNA:

Has the EEOC brought many lawsuits involving obesity as a disability?

Feldblum:

The EEOC has brought two lawsuits involving morbid obesity as a disability since the passage of the ADA Amendments Act. The first was against Resources for Human Development in September 2010 (EEOC v. Resources for Human Development,E.D. La., No. 2:10-cv-03322, complaint filed 9/30/10) and the second was against BAE Systems in September 2011 (EEOC v. BAE Systems Inc.,S.D. Tex., No. 4:11-cv-3497, complaint filed 9/27/11).

BNA:

How have those cases fared in court?

Feldblum:

The commission secured consent decrees in both cases (EEOC v. Resources for Human Development,E.D. La., No. 2:10-cv-03322, consent judgment entered 4/10/12 (38 EDR 553, 4/18/12); EEOC v. BAE Systems Inc.,S.D. Tex., No. 4:11-cv-3497, consent decree filed 7/23/12). These decrees provided monetary relief for the charging parties and imposed training and reporting obligations on the companies at issue. In addition, prior to settlement in the Resources for Human Development case, the district court released an opinion finding that severe obesity is an impairment within the meaning of the ADA and that the plaintiff could be a person with a disability under the ADA Amendments Act (37 EDR 872, 12/21/11).

BNA:

Might the AMA's official recognition of obesity as a disease make it easier for plaintiffs to prove disability discrimination under the ADA's employment provisions?

Feldblum:

The AMA's official recognition will certainly not hurt plaintiffs. But it does not change the basic legal framework. In order to qualify as a disability under the ADA, a physical or mental impairment must substantially limit one or more major life activities or major bodily functions. That was the standard plaintiffs had to meet before the AMA recognition and it is the standard they will need to meet after it.

BNA:

Does or will the AMA's policy change regarding obesity alter the EEOC's enforcement approach or efforts? If so, in what ways?

Feldblum:

No. The commission's enforcement approach is laid out in our Strategic Enforcement Plan for FY 2012-2016 (40 EDR 5, 1/2/13). As far as I know, there are no efforts to change or modify that plan.

BNA:

In light of Centers for Disease Control and Prevention statistics showing that almost 36 percent of American adults are obese, and predictions that the percentage is headed higher, how significant an impact might the AMA's recognition of obesity as a disease have in the American workplace?

Feldblum:

Ultimately, the fact of rising obesity is what will have the real impact on the American workplace. Recognition by the AMA is certainly an important moment but, on its own, I do not believe that it will have a significant impact on the workplace.

BNA:

Are there any stereotypes or biases regarding obese or overweight employees or job seekers that employers may want to keep a specific watch for?

Feldblum:

I often say that the ADA is a “stop, think, and justify” law. Employers should always stop to consider whether an action they are taking or a policy they are employing is based on fact or unfounded beliefs and stereotypes.

BNA:

What measures should employers take to respect and protect the workplace rights of obese workers?

Feldblum:

Employers should create a culture of respect and provide equality of opportunity for all employees. That will go a long way to protecting the rights of all employees with disabilities.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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